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62d CONGKESS ) QITMATT? \ DOCUMENT 

?d Session \ bJ^NATE ^ ^^ 273 



REPRESENTATIVE AS AGAINST DIRECT GOVERNMENT 



JF 493 
I .U6 T116 
Icopy 1 



ADDRESS 



BY 



HON. SAMUEL ^Y. McCALL 



MEMBER OF CONGRESS FROM 
MASSACHUSETTS 



BEFORE THE OHIO STATE BAR ASSOCIATION 

AT THE ANNUAL MEETING HELD AT 

CEDAR POINT, OHIO, JULY 12, 1911 






PRESENTED BY MR. SMITH OF MICHIGAN 
January 23, 1912. — Ordered to be printed 



WASHINGTON 
1912 



>!.- iDZ'^ 



REPRESENTATIVE AS AGAINST DIRECT GOVERNMENT. 



Mr. McCall said : 

The subject I have chosen to talk about to-day is one peculiarly 
worthy to engage the attention of a profession which has been 
•especially identified with that long struggle for a regulated freedom 
which may be seen in the history of what is called the Anglo-Saxon 
race. Wliether we consider the heroic battles fought m the law 
courts of England in favor of human rights and agamst autocracy 
or the proceedings of constitutional conventions in our own country 
where those organic laws were framed that were to govern and 
restrain the governments we estabhshed, the legal profession has 
held the place of high honor. When it is proposed to do no less than 
radically to change our uistitutions there can be no more fittmg place 
to discuss the proposal than before the representative lawyers of a 
State whose bar has given the country some of the brightest ornaments 
of its jurisprudence as weU as some of its greatest statesmen, a bar 
whose' general strength and virility are shown by its fine flowering 
out in advocates like Corwin and Ewitig and Grosbeck and Hoadley, 
and in jurists like Chase and Waite and Matthews and Taft 

The proposals to which I am to direct your attention have for 
their object, or would be likely to have for their result, the changmg 
of our n*ethod of government from that of a representative to that 
of a direct government where we shall have the direct action of the 
people not merely in selecting their agents but in frammg and 
administering their laws. „ „ „ ■,, " i -^ • 

To most of us these proposals are full of novelty, and it is not too 
much to say that as a people we have given them no consideration 
worthy of the name. Have we explored the past to learn whether 
similar experiments have been tried; and if tried, what has been the 
effect? Have we reflected upon the obvious limitations upon the 
utterance by great masses of men of final and definite regulations 
for the conduct of a complex societv ? Have we considered to what 
extent the most doubtful results under our present structure of gov- 
ernment are due to the overzeal of representatives to respond to 
the transient and noisy and often misleading manifestations of 
popular opinion, and to their failure to act bravely as the mstru- 
ments not of the people's passions but of their mterests, and to 
require them to select other agents if they shall insist upon the doing 

of wrong? . , ,1 1 -iu 4. 

At the threshold of the discussion we encounter the usual epithets. 
The advocates of change are apt to seek popular favor by decorating 
themselves and their proposed innovation with some lofty adjective, 
and in a similar fashion to cover their opponents with obloquy. _ The 
quality assumed bv the proponents of one or all of this trinity of 
reforms they express in the word progressive. They are advocating 
"progressive" methods of government, while those who disagree 

3 



4 EEPRESENTATIVE AS AGAINST DIRECT GOVERNMENT. 

with them stand for reactionary methods. "Progressive" is an 
alluring word. Everybody believes in progress if it be of the proper 
kind, and a due amount of vociferation on the part of those claiming 
a monopoly of the virtue may serve to banish skepticism as to the 
kind. But if the question were to be settled by epithets there is 
some ground at least for asserting that they should be transposed in 
their application. Representative government is comparatively 
modern; direct government of the democratic kind is ancient; and 
the latter was deliberately discarded for the former by the founders 
of our Govermiient. I will not cite such a statesman as ]\fadison, 
not because the heavy debt which the cause of free and regulated 
popular government owes him can ever be discharged, but because in 
the passionate rhetoric of the self-styled Progressives he is set down 
as a reactionar}'. I will choose an authority who still remains above 
suspicion and will select the author of the Declaration of Independ- 
ence, which even to-day is considered radical in its democracy. In 
speaking of "the equal rights of man," Thomas JefTerson declared 
that- 
Modern times have the signal advantage, too, of having discovered the only device 
by which these rights can be secured, to wit, government by the people, acting not in 
pei-son, but by representatives chosen by themselves. 

The framers of the Constitution were entirely familiar with the 
failure of direct democracy in the government of numerous popula- 
tions, and they were influenced by their knowledge of that failure in 
devising our own structure of republican government. It is now pro- 
posed to abandon the discovery of modern times, to which Jefferson 
referred, and which he declared to be the only method by which rights 
can be secured, and to put in its stead the discarded device of the 
ancients. Who, then, are the reactionaries — those who are opposed 
to the substitution of direct for representative government and are 
in favor of the progressive principles of the American Constitution, 
or the supporters of direct government who advocate the return to 
the reactionary policies which thousands of years ago demonstrated 
their destructive effect upon the government of any considerable 
populations? It does not follow that to be a reactionary is to be 
wrong. The wise reactionary may sometimes preserve the govern- 
ment of a state, and even its civilization. Whether the initiative, 
referendum, and recall embody sound political principles must be 
determined by other tests. But their advocates should not masquer- 
ade. If they choose to attach to themselves any label, they should 
frankly spread upon their banner the word "reactionary." 

The framers of our Constitution were endeavoring to establish a 
Government which should have sway over a great territory and a 
population already large and which they knew would rapidly increase. 
They were about to consummate the most democratic movement that 
had ever occurred on a grand scale in the history of the world. They 
well knew from the experiments of the past the inevitable limitations 
upon direct democratic government, and, bemg statesmen as well as 
democrats, they sought to make their government enduring by 
guarding against the excesses which had so often brought popular 
governments to destruction. They established a Government which 
Lincoln called "of the people, by the people, for the people," and in 
order effectively to create it they adopted limitations which would 
make its continued existence possible. They knew that, if the govern- 



REPRESENTATIVE AS AGAINST DIRECT GOVERNMENT. 5 

mental energy became too much diluted and dissolved, the evils of 
anarchy would result, and that there would follow a reaction to the 
other extreme, with the resulting overthrow of popular rights. They 
saw clearly the line over which they might not pass in pretended 
devotion to the democratic idea without establishing government of 
the demagogue, by the demagogue, and for the demagogue, with the 
recoil in favor of autocracy, sure speedily to follow; for they knew 
that the men of the race from which they sprang would not long per- 
mit themselves to be the victims of misgovernment, and that they 
would prefer even autocracy to a system under which the great ends 
of government should not be secured, or should be perverted. 

We are in danger of forgetting the essential purpose of government ; 
that it is not an end but a means; that the people do not exist for 
the government, but that government exists for the people. The 
idolatry of government, or of its institutions, has been as debasing 
and injurious as any idolatry that has ever afflicted mankind. It 
has often been. the agent of gross and wholesale oppression; it fre- 
quently has been the means by which the many have been kept in 
servitude and subjection; and, until the establishment of our own 
system, the governments have been few which have had for their chief 
purpose to safeguard and protect the individual, and hold over him 
the shield of law, so that he might be secure in his life, his liberty, the 
fruits of his labor, and in his right as an equal member of the state. 

And when I speak of the individual, I mean the chief thing that is 
essential in the meaning of the term "the people." I do not accept 
the latter term in the sense in which it is so often sweetly used by 
those who desire our votes. I am unable to see how any good coni- 
ing to a mass of men can be felt in any other way than by the indi- 
viduals in the mass. And until somebody shall point out a higher 
consciousness than that of the individual man or vv-oman or child, he 
can hardly be heard to deny that the individual man or woman or 
child is the ultimate concern of the state. 

And then we run into difficulties which, although psychological 
in their character, are likely to become intensely practical. Philoso- 
pliers have written upon the psychology of great crowds. Under 
the influence of some strong emotion the will and the reason of each 
individual seem to be paralyzed, and some of the worst things done 
by mobs are often not approved afterwards by a single member of 
them, but are regarded with horror. The moment comes when 
enkindled passion merges into action and the blended impulses of 
thousands of men overcome all human restraint and an abhorrent 
action is taken with not the shghtest mark of human reason. Wlien 
reason shall act as quickly as impulse and passion, instead of in the 
cold gray dawn of the morning after, possibly we may do away with 
restraints and temporary delegations of authority, and we may then 
directly frame and enact our laws and execute them without the 
intervention of any agents and ma}^ hold the delicate scales of justice. 

The notion that there is a collective personality called " the people," 
separated from the individuals who compose it, and which may be used 
to oppress each one and all of its component parts in turn, may well 
have been a conception of the Greek demagogues b}' whom it was so 
fittingly .illustrated in practice. I can not understand how there can 
be any freedom that is not in the last analysis individual freedom. 
However great a mass of men you may have in a nation, however 



6 EEPEESETSTTATIVE AS AGAINST DIRECT GOVERNMENT. 

powerful physically it may be, if each individual is the victim of 
oppression, if he is denied rights, if there is no forum open to Mm 
where he can be heard to say against the majority, "This is mine^ 
then "the people" have no such thing as liberty, they have no such 
thing as popular rights. As to the "composite citizen," he obviously 
is nobody who ever has existed or ever will exist. When the advo- 
cates of a reform, ignoring the man of flesh and blood in the street, are 
conducting their operations with reference to this mythical person, 
they should emigrate to Utopia. 

It is for the interest of the individual members of our society to 
have the great mass of us pass upon the intricate details of legislation, 
to execute our laws, and to administer justice between man and man ? 
That I believe to be in substance the question raised by the initiative, 
the referendum, and the recall, as they are now practically applied in 
at least one of the States of the Union, the example of which is held 
up as a model to the other States. With an infinitesimal responsi- 
bility, with only one vote in a million, how seriously would each one 
of us feel called upon to withdraw from his own private pursuits and 
to explore in all their details the complicated questions of govern- 
ment ? It would be imposing an impossible task, scattered as we 
are and unable to take common counsel, to require us in the mass to 
direct the work of government. 

First, with regard to the initiative. In our legislation the work of 
investigation and of perfecting details is of such great difficulty that 
proposed laws are distributed among various committees, which are 
charged with the duty of considering their exact terms. The legisla- 
tive body as a whole, although its members are paid for doing the 
work, can not safely assume to pass upon the intricate questions of 
legislation without investigation by committees selected with refer- 
ence to their fitness for the task. The proposed law as perfected by a 
committee is brought before the representative assembly and it is 
-there again discussed and subjected to criticism, both as to policy and 
form, and in this open discussion defects often appear which require 
amendment and sometimes the defeat of the bill. And even with 
these safeguards, laws often find their way upon the statute books 
which are not best adapted to secure the purposes even of their 
authors. 

But what would be the procedure under the initiative ? In Oregon 
a law may be initiated upon a petition of 8 per cent of the voters, 
and it then goes to the people upon the question of its final enactment 
without the intervention of any legislature. Some man has a beau- 
tiful general idea for the advancement of mankind, but beautiful gen- 
eral ideas are exceedingly difficult to put into statutory form so that 
they may become the rule of conduct for a multitude of men. An- 
other man may have some selfish project which, like most selfish 
projects, may be concealed under specious words. The beautiful 
idea or the selfish scheme is written by its author in the form of law, 
and he proceeds to get the requisite number of signers to a petition. 
With a due amount of energy and the payment of canvassers, these 
signatures can be secured by the carload, and the proposed law then 
goes to the people for enactment, and the great mass of us, upon the 
farm, on the hillside, and in the city, proceed to take the last step in 
making a law which nine out of ten of us have never read. And this 



REPRESENTATIVE AS AGAINST DIRECT GOVERNMETNT. 7 

is called securing popular rights and giving the people a larger share 
in their government ! 

The people at the election in Oregon held in 1910 passed upon 
proposed laws which filled a volume of 200 pages, and they passed 
upon them all in a single day, each voter recording his verdict at the 
polling booth upon both the candidates and the proposed laws. In 
the ordinary legislative body, made up of no different material from 
that of which the people are composed, an important question may 
be considered for a day, or even for a week; and then, with the 
arguments fresh in their minds, the legislators record their votes 
upon the single measure. What a delightful jumble we should have 
if 40 different statutes were voted upon in the space of a half hour 
by the members of a humdrum legislature. 

Of course one must be cautious about expressing a doubt that the 
people in their collective capacity can accomplish impossibilities. 
You may say of an individual that he should have some special 
preparation before he attempts to set a broken arm or perform a 
delicate operation upon the eye. But if you say that of all of as in a 
lump, some popular tribune mil denounce you. And yet there is 
ground for the heretical suspicion, admitting that each one of the 
people may have in him the making of a great legislator, that there 
should be one simple prerequisite which he should observe in order 
to be any sort of a legislator at all. He should first read or attempt 
to understand the provisions of a bill before solemnly enacting it into 
law. One can scarcely be accused of begging the question to say 
that the voters would not read a whole volume of laws before voting 
upon them. The slightest knowledge of human nature would war- 
rant that assertion. 

How many even of the most intelligent of our people, of college 
professors, of ministers, read the statutes that have already been 
passed and are to govern their conduct? Even lawyers are not apt 
to read them generally, but in connection with particular cases. But 
if some proof were necessary, one has only to cite some of the Oregon 
laws. For example, there are two methods of pursuing the salmon 
fisheries in the Columbia River. In the lower and sluggish waters of 
the stream fishing is done by the net, and in the upper waters by the 
wheel. The net fishermen desired to prohibit fishing by the wheel, 
and they procured sufficient signatures and initiated a law having that 
object in view. On the other hand, the wheel fishermen at the same 
time wished to restrict fishing by the net, and they initiated a law 
for that purpose. Both laws went before the people at the same 
election and they generously passed them both, and thus, so far as 
the action of the people was concerned, the great salmon fisheries of 
the Columbia were practically stopped. 

A law was "initiated'' by signatures and was enacted by the 
people at the election in November, 1910, providing for the election 
of delegates to the national political conventions by popular vote. 
The law forbade each voter to vote for more than one candidate. 
But upon the usual basis of apportionment Oregon is entitled to 10 
delegates in a national convention. If some candidate should be 
preeminently fitted above all others for the place and should receive 
all the votes, the State would have only a single delegate in the con- 
vention. If the voter has the right to vote for all the candidates for 



'8 REPRESENTATIVE AS AGAINST DIRECT GOVERNMENT. 

the whole representation of Ms State in the electoral college, what 
semblance of a reason can there be why he should not have the same 
participation in the preliminary election when the candidate, who 
may finally be elected President, is to be chosen? The same law 
forbids a voter from voting for the nomination of more than one can- 
didate for presidential elector. Thus a minority of a party in the 
State may nominate candidates for electors hostile to its presidential 
candidate. 

If the vote of the preside*ntial electors of Oregon shall not some 
time be divided, even though the popular vote ma}^ have been 
strongly in favor of a given candidate, it will not be the fault of this 
law. 

It seems rather superfluous to cite instances to prove that, where 
the filial legislative body is denied the power of meeting and discuss- 
ing the provisions of a proposed law, there will be loose and freakish 
legislation of the worst kind. Mr. Woodrow Wilson, before he 
essayed the exacting role of the practical politician, declared before 
the students of Columbia University that a government ''can not act 
inorganically by masses; it must have a law-maldng body. It can 
no more make laws through its voters than it can make laws through 
its newspapers." And in the same course of lectures he declared 
that : 

We sometimes allow ourselves to assume that the ' ' initiative ' 'and the ' ' referendum, ' ' 
now so much talked of and so imperfectly understood, are a more thorough means of 
getting at public opinion than the processes of our legislative assemblies. Many a 
radical program may get what will seem to be almost general approval if you Usten 
only to those who know they will not have to handle the perilous matter of action, and 
to those who have merely formed an independent — that is, an isolated opinion — and 
have not entered into common counsel; but you will seldom find a deliberative assem- 
bly acting half so radically as its several members have professed themselves ready 
to act before they came together into one place and talked the matter over and con- 
trived statutes. 

After Mr. Wilson entered upon his political career he changed his 
mind, but his recantation in no degree affects the weight of the argu- 
ment to which I have referred. The "common counsel," of which he 
speaks is an indispensable process in the making of law^s, and when- 
ever our legislative bodies impose serious limitations upon the process 
it is usually" to the detriment of the character of the laws passed; and 
the more grave and statesman-like the deliberations of those charged 
with the responsibility, the better it will be for the State. For this 
vital process there would be substituted the enthusiasm of somebody 
who believes he has devised some statutory cure-all for the ills that 
afflict the body politic, and embodies his enthusiasm in a bill. He 
seconds himself, as anyone may, with the necessary signatures to a 
petition; and then without coming together and taking common 
counsel, and often without reading what has been written, the great 
mass of us solemnly proceed to vote. Such a procedure would put a 
test upon the people under which no nation could long endure. 

The referendum is somewhat better than the initiative, but as a 
settled policy in the making of ordinary statutes it is indefensible. 
It can be used upon concrete propositions that are not complex in 
character, and especially upon constitutional propositions which ordi- 
narily enunciate general principles. In the case of constitutional 
changes, hovv^ever, they should never take effect without the support 
of a clear majority of the voters, and in advance of their action they 



REPRESENTATIVE AS AGAINST DIRECT GOVERNMENT. 9 

should have the support of a large majority of the legislative body, 
such as is provided in Massachusetts, so that our constitutions should 
have more stability than mere statutes, and should not be subject to 
change with every passing breeze. 

I may illustrate again from the example of Oregon, which is pointed 
out by the friends of these reforms as a model and whose people are 
heroically subjecting themselves to political vivisection in the testing 
of governmental experiments. An amendment may be made to the 
constitution of that State by a majority of those who vote upon the 
proposition in question. An amendment was passed in one election, 
by barelj^ one-third of the legal voters, which provided that in civil 
cases three-fourths of a jury might render a verdict, that no new trial 
should be had where there was any evidence at all to sustai>n the ver- 
dict, and makmg other important changes in the method of adminis- 
tering justice. Constitutional changes should not be made, except in 
deference to a pronounced and settled public opinion, which can not 
better be determined under our system than to require the action of 
successive legislatures and afterwards a direct vote of the people. 

The referendum may sometimes profitably be used in connection 
with questions affecting municipalities, where each voter has an ap- 
preciable interest in the solution of the question and is famihar with 
the conditions upon which the solution depends ; but as a step in the 
process of passing statutes of the usual character, statutes which cre- 
ate crimes and provide penalties for their violation, or which have 
complicated regulations of a business character, the use of the refer- 
endum would be vicious. We are not in the mass adapted to pass 
upon questions of detail, just as the thousands of stockholders of a 
great corporation are not in a position directly to manage its business 
affairs. The function that we can best exercise is that of selecting 
agents for that purpose and of holding them responsible for results. 
Upon the questions relating to the character of representatives, who 
are usually loiown personally to the people, they have excel^nt means 
for forming a judgment. But if they so often make a mistake in their 
judgments of the men they select, as we must infer from the arguments 
in favor of direct legislation, how much more would they be apt to 
make mistakes in dealing with the complicated questions involved in 
practical legislation ? 

The referendmu takes away from the legislature the responsibility 
k)r the final passage of laws and permits it to shift the burden upon 
the people. Legislators will be asked: "Are you not willing to trust 
the people to say in their wisdom whether a given bill should be 
enacted?'' The prevailing vice of members of lawmaking bodies in 
our country is not venality, it is political cowardice; and they will be 
ready to take refuge in that invitation to trust the people. A witty 
Member of Congress from Mississippi once said that he usually found 
it easier to do wrong than to explain why he did right. There will 
be no such difficulty under the referendum. The legislator may dodge 
the responsibility of voting upon some bad but specious law where 
his political interests would lead him to vote one way and his sense 
of duty another way. He would only need to say that he believed in 
the people, and would vote to refer it to that supreme court of appeal. 
Even under the present system fl legislator is quite too mucli influ- 
enced by the noisy demonstrations that may be made in favor of one 
side or the other of a pending proposition, and some of the worst laws 



10 EEPEESENTATIVE AS AGAINST DIRECT GOVERNMENT. 

that find their way upon the statute books get there, not because they 
are approved by the judgment of the legislator, but in response to 
what he thinks may be the wishes of the people. And instead of 
voting for what he honestly believes to be just and for the public 
interests, even against what may appear at the moment to be popu- 
lar sentiment, and then bravely going before his constituents and 
attempting to educate them upon the question, he quite too often 
tacks and goes before the wind. 

IVhile the prevailing fault of legislative bodies is, as I have said, 
pohtical cowardice, the fault of the voter is poHtical indifference. 
There are far too few of us who carefully study public questions and 
try to secure exact information about them. We are attracted by 
sensational charges, by lurid headlines in the newspapers, and by gen- 
eralities. We too often complacently accept the estimate that is 
placed Upon our profound and exact pohtical knowledge by the men 
who are asking us to vote for them, and we are far from giving that 
serious attention to the pohtical issues which we bestow upon our 
own private affairs. 

There is a lawyer of very high standing at the bar of his State who 
was astonished to be told that the House of Representatives had an 
estabhshed order of business which consumed the greater part of its 
time. He imagined that the Speaker had practically unhmited dis- 
cretion in recognition. Another intelhgent man who was president 
of a great railroad could not give the name of his Member of Congress, 
although he had probably voted for him for 10 years, if he had voted 
at all. Such instances are by no means rare, and mtelligent people of 
that sort who neglect their pubhc duties often become the easy victims 
of every "ism" and ''dum." 

We are so engrosed in our private business that many of us give 
no attention to public questions, or we too frequently bestow upon 
the latter such superficial study that our action becomes the danger- 
ous thing that is based upon little knowledge. This condition of 
indifference, even under our present system, produces nothing but an 
evil effect upon the character of laws; and this evil effect would be 
greatly intensified under the initiative and referendum. Legislation 
may be expected to represent in the long run the fair average of the 
information and the study of the body which enacts it, whether that 
body be composed of four hundred legislators or one hundred millions 
of people. 

A reform that is most needed is one that will make difficult the 
passage of laws, unless they repeal existing statutes. The mania 
of the time is too much legislation and the tendency to regulate every- 
body and everything by artificial enactments. The referendum 
would not be likely to furnish the cure for this evil, but would tend 
to increase the number of questionable statutes that would be referred 
to the people ; and some of them would doubtless be enacted. If those 
who are chosen and paid to do the work, and upon whom the respon- 
sibility is placed, are sometimes found to enact vicious laws, what 
would be the result if legislation were "enacted by all of us when we 
had made no special investigation of details, when we should be quite 
too prone to accept the declamatory recommendations of the advo- 
cates of legislative schemes, and submissively swallow the quack nos- 
trums that might be offered for the diseases afflicting the body politic ? 

The most dangerous statutes are those which deal with admitted 



EEPEESENTATIVE AS AGAINST DIRECT GOVEKNMENT. H 

evils, and, in order to repress them, are so brjoadly drawn as to include 
great numbers of cases whicli should not fairly come within their scope, 
or to create a borderland of doubt where the great mass of us may 
not clearly know how to regulate our conduct in order that we may 
comply with their proliibitions. Just such statutes, with a basis of 
justice but with imperfectly constructed details, would be most likely 
to prevail upon a popular vote. If the 46 States of the Union and the 
National Government which is the aggregate of them all should have 
this system of direct legislation, our statute books would very likely 
soon become a medley of ill-considered reforms, of aspirations sought 
to be expressed in the cold prose of statutes, of emotional enactments 
perpetuating some passing popular whim and maldng it a rule of con- 
duct for the future; and the strict enforcement of our laws would 
mean the destruction of our civilization. 

And then, in order to perfect this scheme of popular government 
and to safeguard the rights of a helpless people, in addition to all this, 
they offer us the recall. Not merely are the laws to be directly en- 
acted by the people, but the execution of the laws is to be conducted 
in the same way. There would be temporary agents for the pm-pose 
of governing, but the people would have ropes about their necks, and 
at any momxcnt they would be subject to political extinction. This 
power involves the supposition that the people are omniscient and 
ever watchful. 

The constitution of Arizona seems to be in line with the most 
advanced thought upon this subject. That constitution provides 
that 25 per cent of the voters may institute a proceeding for the recall; 
and when it is invoked the man whom they have elected to an office 
is permitted either to resign in five days or to defend himself in 200 
words, upon a proceeding to throw him out in disgrace. It very 
rarely happens that there is an election in which the defeated candi- 
date does not receive 25 per cent of the vote, and not infrequently 
he receives nearly one-half of it. It would be a matter of no difficulty 
for him to initiate a recall and practically to have the election over 
again, and so we should have perpetual warfare over the holding of 
office. That result has already clearly developed where the recall is 
in force. 

A public officer could not take the long view; he could not patiently 
study the problems that confronted him and carefully look into the 
conditions, with which his office had placed liim in close contact, but 
of which as a private citizen he could have only the most general 
knowledge. But he would need to be careful to do only those things 
which might be justified, not by close inspection, but upon the most 
superficial view. The office to which he has been elected gives him 
an elevated point of view which he did not have before, but he can not 
avail himself of his wider range, because if he is no sooner in office than 
he must justify himself or retire in disgrace, he will be hkely to do the 
thing most pleasing to the prevailing fancy and which will adapt itself 
most easily to the momentary condition of the public mind. His 
pohtical interests will lead him to do the plausible and easily adver- 
tised thing, and it may be the thing that will really injure the people. 

Whether such a government may be called popular or not we should 
be likely always to have under it government of the politician rather 
than government of the statesman. I have been criticised for using 
an expression similar to this, as if I had implied the converse; that we 



12 REPRESENTATIVE AS AGAINST DIRECT GOVERNMENT. 

now always have government by the statesman; but such an inference 
can be drawn only by a careless or an unscrupulous thinker. That we 
sometimes have government by the statesman is undeniable; but 
that our government is perfect, nobody would pretend. Edmund 
Burke asserted in effect the same thing at a time in liis career when 
he was the most liberal, as he was always the most philosophical, of 
British statesmen. In appealing to his constituents for the right of a 
representative "to act upon a very enlarged view of things," and not 
to look merely to the "flash of the day," he declared: 

When the popular member is narrowed in his ideas, and rendered timid in his pro- 
ceedings, the service of the Crown will be the sole nursery of statesmen. 

According to Burke's view the constant response to the popular 
mood would at least banish statesmen from the service of the people, 
if it did not limit it to the politicians. 

It is not difficult to turn back to the supreme crises in American 
history, when its greatest figures were heroically struggling for what 
they saw to be for the interests of their country, and, if the policy of 
the recall had been in force, to see how the whole course of history 
might have been changed, and how ambition and envy might have 
utilized a temporary unpopularity to terminate some splendid career. 

As an illustration, take Lincoln in the earlier days of his administra- 
tion. The disastrous ctefeats that the Union arms had suffered had 
been relieved only by slight successes. Lincoln scarcely had a friend 
even in his own Cabinet. Seward was willing to take him under 
guardianship and run the country for him ; Stanton had written of the 
"imbecility" of the administration; Chase was quite ready to be a 
candidate or the Presidency himself; the abolitionists were unsparing 
in their criticism; the great organs of public opinion were hostile to 
him; and there can be little doubt that, if a proceeding for recall could 
have been had against him at the moment when he was enveloped in 
the clouds of unpopularity, the career of the greatest of Americans 
would have been brought to a disgraceful ending, with results to 
civilization which it is melancholy to contemplate. 

And then we are to have the recall of judges. The enforcement of 
laws by judges subject to popular recall would be likely to be quite in 
keeping with the character of the laws, if they had been enacted under 
the initiative and referendum. If we are to have all the other things, 
the initiative, the referendum, the recall of political officers, there 
would be this reason for having the judicial recall. It would complete 
and make exquisite the harmony of this destructive system. The two 
fundamental things in the development of English liberty were the 
free Parliament chosen by the people and independent of the Crown, 
and the independence of the judiciary, which had held its tenure only 
at the royal pleasure. The first great step for the independence of 
Parliament was won at Runnymede, and the most signal result of the 
Revolution of 1688 was the establishment of the independence of the 
judiciary. 

Every schoolboy knows the story of the bloody assizes, the black 
Judicial murders, the gross travesties of justice which were seen under 
the old system, when the judges held their office subject to the favor 
of the Crown. It was onl}^ after the Revolution that English courts 
became the real theaters of justice, and the weight of the law and the 
evidence and not the fear of a master determined the decree. But 



REPRESENTATIVE AS AGAINST DIRECT GOVERNMENT. 13 

the recall of judges would make them on the instant subject to another 
master. The judge, in order to feel secure in his office, would have to 
consult the popular omens rather than the sources of the law. Instead 
of looking to the drift of the authorities, he would be likely to study 
the dkection of the popular winds. If in some judicial district a 
strong labor union or a great corporation should hold the balance of 
political power, the courts in that district would be likely to become 
mere instruments of oppression. 

But if we, the people, are so perfect that we can do no wrong even 
though we are guilty of no investigation, and can with wisdom assume 
directly to enact and enforce our laws, what reason is there why there 
should be any constitutional restraint upon our action, and why 
should we be hampered with, statutes or constitutions even of our 
own maldng ? Why not have the present entirely free from restraints 
imposed by the past ? Why not permit us in our omnipotent wisdom 
to decide each case upon its own merits, considering only the inherent 
principles of abstract justice, which in our collective capacity, accord- 
ing to our flatterers, we must of course thoroughly understand? 

The democracy of Athens at last attained to this altitude, where 
the sublimated "composite citizen" stood forth unfettered and 
showed what he could really do. In the latter days of that city the 
action of her people became so direct that in a single abhorrent decree, 
disregarding what was left of their constitution, they ordered- six of 
their generals, among them the son of Pericles, to be executed; 
because, although victorious over their enemies in the days when 
Athenian victories were few, the success had not been achieved with- 
out cost. 

Those who advocate the direct action of our great democracy 
might study with a good deal of profit the history of the little state to 
which I have just been referring. No more brilliant people ever 
existed than the Athenian people. They had a genius for govern- 
ment. The common man was able to "think imperially." Their 
great philosopher, Aristotle, could well speak of the Athenian as a 
political animal. They achieved a development in literature and 
art which probably has never since been reached. They could boast 
of orators and philosophers to which those of no other nation can be 
compared. We marvel when we consider the surviving proofs of their 
civilization. But when they did away with all restraints upon their 
direct action in the making and enforcement of laws, in administering 
justice, and in regulating foreign affairs, their greatness was soon 
brought to an end and they became the victims of the most odious 
tyranny to which any people can be subjected, the tyrami}^ that 
results from their own unrestrained and unbridled action. 

It is said that the history of those distant times can present no 
useful precedent for our own guidance, but in what respect is human 
nature different to-day? Whatever new stars our telescopes may 
have discovered, whatever new inventions may have been brought to 
light, and whatever advances may have been made in scientific 
knowledge, the mainsprmgs of human action are substantially the 
same to-day that they were in the time of the Greeks. We should 
be rash indeed to assume that we shall succeed where they failed, 
and that we can disregard their experience with impunity. 

But we are told that the crime of our age is the inordinate love of 
wealth, and that to protect ourselves from its evils we must set aside 



14 REPRESENTATIVE AS AGAINST DIRECT GOVERNMENT, 

our existing institutions. But is the love of wealth, any new thing? 
The greatest of ancient statesmen were accused of the grossest forms 
of bribery. Thousands of years ago the love of money was declared 
to be the root of all evil. It is not the fault of an age to be satisfied 
with itself. Poets have always been singuig of a golden age, and they 
have placed it sometimes in the past, sometimes m the future, but 
never in the present. We may go back almost to the oldest of poets, 
Hesiod, and we shall find him placing the golden age far back of his 
own day, while his own time he pictured as one stained with plunder- 
ing, with envy, brawling, and perjury. Horace, in a lively ode, sought 
a poet's escape, and called upon the Koman citizens to abandon their 
wicked country and set sail for the mythical islands where the honey 
flows from the oak trees and the she goats, mibidden, brought their 
full udders to the milking pails — islands which Jupiter had set aside 
when he stained the golden age with brass and hardened the brazen 
ages into iron. And those islands were no more mythical than the 
refuge from our own crimes which the inventors of the initiative, the 
referendum, and the recall have pointed out to us. 

In what respect would we have been better if, during the amazing 
physical development of the last two generations, we had had direct 
democratic government ? It can not be contended that our legislators 
did not represent the people. If they had attempted by their votes 
to repress the universal sentiment for industrial expansion, they 
could not have remained in office. The people of the towns even of 
New England were found voting bonds as bonuses for the building of 
railroads, and exemptions from taxation in order to secure manu- 
facturing plants. And in the growing West the sentiment for empire 
and expansion was so strong that cities and towns were bidding 
against each other in the offer of gratuities, and if it had not been for 
the occasional conservatism of legislatures, and for the issuing of 
injunctions by judges, who under the recall would quite hkely have 
been thrown out of office, our western country would have been 
covered with communities which had made themselves bankrupt by 
the gratuitous issue of bonds in aid of factories and railroads; and 
we should probably not have attained anything approaching our 
present development, because of the check that would inevitably 
have come through the gross corruption of the system. 

But our representatives are corrupt and they can not be trusted. 
Undoubtedly you will sometimes find a corrupt legislator or a corrupt 
ring of legislators. But unfortunately you will sometimes find a 
corrupt voter and even a community of corrupt voters. Notwith- 
standmg this latter circumstance the ballots of the great mass of the 
American people are pure and without taint, and at the same time I 
believe that the great mass of the legislators both at the State capitols 
and at Washington are honest men. It is a singular reflection which 
these self-anointed champions of the people make upon their purity 
when they assert that the people generallj^ or often choose corrupt 
men to represent them. Such an assertion is at least hardly compat- 
ible with the uniform perfection of popular action. 

The advocates of direct government cite the examples of Oregon 
and Switzerland, where they point to results with an eloquence 
nowhere else to be found outside of a mining prospectus. Perhaps I 
have already referred sufficiently to Oregon. One must be easily 



EEPKESENTATIVE AS AGAINST DIEECT GOVERNMENT. 15 

satisfied who can be convinced by a careful scrutiny of results in that 
State, even though the experiment has been tried among her intelli- 
gent people. Switzerland is a small country, scarcely equal in area 
to some of our American counties, and a large proportion even of that 
small area is covered by uninliabitable mountains. The population 
is thrifty and conservative, and largely devoted to the work of caring 
for the vast numbers of tf)urists who annually ^dsit the country. The 
conditions as to complexity of industry are radically different from 
those existing in America. But while Switzerland is one of the 
countries best adapted, as we certainly are one of the least adapted, 
to the operation of the initiative and the referendum, the results 
there are not such as to justify their adoption in any other country, 
if we may credit the report made to the State Department by our 
vice consul at Berne, and presented to the Senate by Mr. La Follette 
on July 13, 1909. This report says: 

The great questions of centralization, civil status, laws of marriage and divorce, 
bankruptcy laws, the customs tariffs, the railroad purchase, employers' liability, 
factory laws, unity of the conflicting cantonal civil and criminal laws into a federal 
code, the military organization, the pure-food law, etc., all of which are things of the 
past, were congressional measures. It may safely be said that the initiative can be 
of decided and positive value only in districts small enough to enable the average 
citizen to form a conscientious opinion upon projects of such local significance as to 
be well within his practical knowledge, but, in addition, he must exercise his duty 
as he sees it at the polls. With a comparatively small number of signatures requisite 
for an initiative measure, its danger lies in the fact that it may easily be prostituted 
by factions, cliques, malcontents, and demagogues to force upon the people projects 
of partisan, freak, or unnecessary legislation. 

As to the referendum, there is no other veto power in Switzerland. 
While it not so intelligently exercised as it would be b}^ an upright 
executive, yet it has occasionally proved an important check. The 
most striking general result is seen in the relatively small number of 
voters who ^vill vote upon laws, and while statutes have been passed 
to compel voting, their provisions have simply increased the great 
number of blank votes. 

The most serious tendency under our present system is seen in the 
multiphcation of statutes which threatens to destroy liberty and even 
to engulf our civilization. But much of this legislative rubbish is the 
product of those who are given to exploiting themselves as the especial 
champions of the people, or is the result of the readiness of the legis- 
lator to respond to what he thinks is the popular demand. The 
member who is most disposed to cast a negative vote is stigmatized 
as a reactionary. It is not difficult to place the most immature, 
visionary, and apparently popular schemes upon the statute books 
of some of the oldest and, until recently, most conservative States 
of the Union. 

We should not experiment lightly with the fundamental principles 
of our Government and trust to our good fortune to escape danger. 
It is well to be an optimist, at least so far as faith is concerned in the 
final triumph of good in the universe, but we should be careful not 
to follow too willingly those professional optimists and political 
Micawbers who are always sure, in whatever condition of danger we 
put ourselves, that something will turn up to our advantage. One 
of the most radical mistakes our Nation has ever made was contributed 
to in large measure by well-meaning people who employed eulogiums 
upon their own optimism instead of arguments, and denounced as 



16 REPRESENTATIVE AS AGAINST DIRECT GOVERNMENT. 

pessimists those who did not cheerily agree with them. Faith that 
things will ultimately come out well does not mean that we may 
recklessly take the next step. 

It should be remembered that civilization has sometimes moved 
backward for a time, that liberty has been submerged, and that great 
and powerful nations have been brought to naught. Instead of 
changing our system of government because of the existence of evils 
which have existed since the beginning of time, and instead of attempt- 
ing to seek refuge in a demagogue's paradise, our people should be 
incited to study closely the problems of government, to set higher 
standards for their own conduct, with the result that higher stand- 
ards will be followed by their chosen agents; and there is no evil for 
which the initiative, the referendum, and the recall are proposed as a 
remedy that can not effectively be dealt with under our republican 
institutions without the disintegration, the demoralization, and the 
ultimate destruction of regulated liberty and of individual rights 
likely to follow from the application of those reactionary policies, 
just as they have followed them when applied upon a large scale in 
history. 

We look back upon the heroic periods of our history with admira- 
.-tion, but with something like envy also that the opportunities for 
groat service do not now appear so inevitable and clear as in those 
times. But if it was a great achievement for Washington and those 
who were with him to fashion a Nation of 3,000,000 people and estab- 
lish free mstitutions for them, is the work of preservation less than 
that of founding, now that that Nation numbers 100,000,000 ? There 
is set before us a task as noble as that of Wasliington when he laid the 
foundations of our State, as vital as that of Webster when he armed 
us with those irresistible arguments for the Union, as necessary asj 
that of Lincoln who perfected the work of those who had preceded 
him and made our country at last really free. It is for us to see that 
we do not weakly abandon in the indifference of peace all that has been 
won by the sacrifices of war. It is for us to hold our course by the 
steady lights of our history and not follow the leadings of a coterie of 
political mystics who see wondrous visions and point out to us strange 
paths. It is as great a work to save the ship from shipwreck as it 
was to build it. 

Q LIBRftRY OF CONGRESS 

012 050 584 1 ^ 



